Attorney for Respondent Attorneys for The Commission On
Hon. Raymond L. Kern Judicial Qualifications
Kevin P. McGoff Meg W. Babcock
Indianapolis, Indiana Donald R. Lundberg
IN THE MATTER OF THE ) Supreme Court Cause Nos. HONORABLE RAYMOND ) 47S00-0105-JD-226 L. KERN, Judge of Lawrence ) 47S00-0206-JD-333 Superior Court I ) _____________________________________________________________________
JUDICIAL DISCIPLINARY ACTION_____________________________________________________________________
The first set of charges brought by the Commission alleged that Respondent engaged
in improper ex parte communications with a litigant in his court. Respondent
denied the allegations. We appointed three trial judges to serve as special
masters. The masters job is to hear evidence and to prepare a
report to the Court of their factual findings and conclusions. See Ind.
Admission and Discipline Rules 25(VIII)(I), (K), and (N).
A trial was conducted. The masters prepared a thorough report. In
sum, the masters found that the following occurred.
A mother had custody of her child. The mother was separated from
her husband and a dissolution proceeding was pending. The husband was not
the childs biological father but he apparently wanted to maintain a relationship with
the child. The husband appeared one afternoon at the childs kindergarten class
and attempted to remove the child from the school. The principal of
the school contacted mother by telephone. Based on the mothers claim of
custody, the principal refused to release the child to the husband.
The husband then went to Respondents court where court staff helped him prepare
an affidavit. The affidavit made various claims, some of which were later
found to be false. Even with the false statements, the affidavit did
not allege specific facts showing that immediate and irreparable injury would result if
an order was not issued before mother could be heard, as required under
these circumstances by Indiana Trial Rule 65(B)(1). Respondent nevertheless immediately prepared and
issued an order granting custody to the husband. The husband returned to
the school and, armed with Respondents order, took the child home with him
that same day. Neither the husband nor Respondent contacted the mother about
the proceeding that took place in the court.
However, alerted to the potential problem by the call from the principal, the
childs mother immediately telephoned her attorney. The attorney called the court and
spoke to court staff and to Respondent the same afternoon the custody order
was issued. The attorney asked Respondent to take no action until the
mother could be heard. Respondent did not inform the attorney that he
had already issued the custody order. Instead, later that day, Respondent faxed
a copy of the affidavit and the custody order to the attorney.
The attorney filed a motion to vacate the order and set the matter
for expedited hearing. Respondent did not rescind the custody order that had
been issued on an ex parte basis, and did not set the matter
for a hearing for another twenty days. Following that hearing, Respondent ordered
custody returned to the mother.
The masters found Respondents conduct violated Canon 3B(8) of the Code of Judicial
Conduct, which generally prohibits a judge from permitting or considering ex parte communications
concerning a pending proceeding except in limited circumstances not present in this case.
They recommended that Respondent be suspended from office for a period not
to exceed fifteen days. Three aggravating circumstances were cited by the masters.
First, Respondent made false statements during the course of the trial.
Second, Respondent had been previously warned by the Commission about improper ex parte
contact, and was in fact the judge whose conduct was the subject of
In re Anonymous, 729 N.E.2d 566 (Ind. 2000). Third, Respondent showed
no remorse and testified at the trial that he still believed he had
done the right thing.
Once the masters report was filed, the matter was submitted to the Court
for consideration. Respondent objected to the findings of the masters. The
Commission recommended that Respondent be removed from office for his conduct.
We review the findings of the masters de novo and reach our own
conclusions about whether misconduct has occurred and, if so, what sanction is appropriate.
See Adm. Disc. R. 25(VIII)(P)(3). However, because the Commission had recommended
removal, we suspended Respondent from office until further order of the Court.
See Adm. Disc. R. 25(V)(B)(A judicial officer shall be suspended with pay while
there is pending before the Supreme Court a recommendation for the retirement or
removal of the judicial officer.).
While the initial proceeding was pending before us for review, the Commission filed
a second set of charges against Respondent. In this new charging complaint,
the Commission alleged that: (1) Respondent had issued misleading orders and made
misleading statements in an unsuccessful attempt to obtain payment from Lawrence County for
the legal expenses he incurred in defending himself in the initial action;
(2) Respondent submitted mileage claims to Lawrence County on behalf of employees whose
mileage expenses had already been paid by the Commission; (3) Respondent continued to
preside over cases involving his own creditors, even as he and his personal
lawyers were negotiating with those same creditors in the course of his bankruptcy
proceeding; and that (4) Respondent made a false statement to the Commission about
the status of his finances.
Shortly after Respondent filed his answer to the second set of charges, the
parties tendered a Conditional Agreement To Resolution Of Charges. Under the
terms of the agreement, Respondent acknowledged misconduct in the initial proceeding and agreed
to resign as Judge of Lawrence Superior Court I effective nine days from
the date the agreement was tendered. Respondent agreed not to either seek
or accept any future judicial office or to serve in any judicial capacity
in Indiana. The Court accepted the agreement, rendering moot the adjudication of
the second set of charges.
Respondent resigned and we now issue this order for publication to document the
circumstances of that resignation. This resolution of the proceedings constitutes professional discipline
which must be reported to the appropriate authority should Respondent seek admission as
a lawyer in another jurisdiction. The two proceedings involving Respondent are at
end. The costs of the proceedings are assessed against Respondent.
Done at Indianapolis, Indiana, this 9th day of September, 2002.
/s/ Randall T. Shepard
Chief Justice of Indiana
All Justices concur.